Harping On Abu Ghraib and Gitmo is Highly Misguided

The fact that a combatant status review tribunal has determined that a detainee is an enemy combatant who may be lawfully detained under the laws of war for the duration of the active hostilities doesn't address the issue of whether the enemy combatant is entitled to POW status under the Geneva Convention or whether the enemy combatant may be designated as an "UNLAWFUL combatant" who is NOT entitled to POW status.

Designating a detainee as an "enemy combatant" simply begs the question.

But tribunals similar to these can address the POW status issue in accordance with Hamdi, can they not?

Jess Bravin had a remarkable article in last Thurday's Wall Street Journal (available for free to the public) on a set of war crimes decisions issued shortly after World War II which contain striking resemblances to the cases pending today — both cases involving alleged Al Qaeda members, and cases involving U.S. servicemembers accused of abuse. According to Mr. Bravin:

For decades, records of the Kikuchi case and hundreds of other postwar tribunals lay forgotten in archives and government offices around the world. But now they could assume new significance for one of the most contentious aspects of the war on terrorism: the U.S.'s treatment of prisoners.

Hundreds of suspected terrorists and enemy fighters have been captured since the fall of 2001 and housed at Guantanamo Bay, Cuba, and elsewhere. The Bush administration has determined these captives aren't protected by the Geneva Conventions. But the administration has faced a wave of legal challenges to that view, and suffered several defeats so far. Today, government lawyers will ask a federal appeals court in Washington to reverse a November ruling that found the Geneva Convention protects prisoners held at Guantanamo and ordered an immediate halt to military commission proceedings against detainees because they didn't comply with the treaty.

The legal battle is likely to end up at the Supreme Court, and, depending on its outcome, could compel the U.S. to devise a new road map for prisoner treatment. The rulings from the years immediately after World War II lay out the most complete picture available of the way the U.S. viewed treatment of prisoners of war back then, when modern international humanitarian law was laid down. The question is, do these cases apply today?

Critics of the Bush administration's policy on terror-related prisoners argue they do. "These are the foundational cases," the first to apply international law to questions of prisoner treatment during armed conflict, says David Cohen, a 56-year-old professor of classics and rhetoric at the University of California, Berkeley, who also teaches classes on war crimes. He has spent the last 10 years collecting the documents from archives and government offices, adding millions of pages to existing records and unearthing the case of Mr. Kikuchi.

The records make it clear that after World War II, U.S. military prosecutors and judges set out to establish a precedent barring any prisoner mistreatment, by aggressively pursuing and punishing even comparatively small offenses.
What the records make clear are some unbelievable similarities between the policy positions and defenses of the Japanese during World War II, and the U.S. government today. Then, the U.S. prosecuted such abuses, aggressively using the "command responsibility" doctrine to go after senior officers who knew or should have known about their subordinates' misconduct. Now, a year after Abu Ghraib, we have yet to see a single court-martial for a soldier over the rank of staff sergeant. Instead, today's generals remain free to hold panel discussions where they blame everyone else but themselves. According to BG Janis Karpinski at a recent talk in San Francisco:

"I find it hard to believe that I did not know," she said. "If I had known, I would've raised the issue. I would've shouted about it."
Wrong! That's not the standard. A general officer is not just responsible for what she knew, but what she should have known. The same goes for the colonels and captains under her. As a nation, we have sent enemy generals to the gallows for the actions of their subordinates. See Application of Yamashita, 327 US 1 (1946). There is some irony in the fact that we now let our own generals off for similar misconduct.

But wait — there's more irony where that came from. Mr. Bravin's article (and its online supplement -- also available for free from the Wall Street Journal) draws an even more interesting parallel between the kind of legal process afforded U.S. personnel by the Japanese during WWII, and the kind of legal process we are now giving alleged Al Qaeda members at Gitmo and elsewhere. After WWII, we prosecuted the Japanese for war crimes stemming from their deprivation of due process in violation of international law, so the point is a very important one. According ot Mr. Bravin and the records from the WWII archives:

Japan saw the bombing of its cities as the deliberate targeting of civilians--and employed summary proceedings to punish captured American flyers as war criminals. Following the war, American military authorities concluded that treating Americans as war criminals was itself a war crime, because the Japanese procedures didn't meet the due-process standards of international law. At U.S. military commissions convened at Yokohama, Japan, in the late 1940s, U.S. Army officers carefully reviewed the level of due process the enemy had afforded American prisoners, and harshly punished them for falling short of what the U.S. decided was required.

That history may now come back to haunt the Bush administration, as advocates for prisoners held at Guantanamo Bay, Cuba, argue that, like Japan in World War II, the U.S. today is punishing prisoners without affording them sufficient due process.

* * *
The current military commission is unlawful, [Georgetown law professor Neal] Katyal argues, because it affords defendants fewer rights than American soldiers receive before courts-martial, in particular by denying defendants the right to confront all witnesses or see all evidence against them.

The government's primary claim is that courts have no authority to second-guess the treatment of enemy prisoners. But the administration also contends its military commission will offer a fair trial. President Bush's November 2001 order authorizing the commission called for "full and fair" trials, and officials say they have been reviewing the procedures with an eye to making them resemble courts-martial more closely. Nonetheless, the administration maintains that special courts are needed to try international terrorism suspects because of the grave threat they pose to the U.S. Under current rules, commissions can sentence convicts to any term or, on vote of a unanimous seven-member panel, death.

According to the U.S. military's World War II records, Japanese officials also devised special procedures to deal with what they considered an extraordinary threat. American flyers "who do not violate international law will be treated as prisoners of war," but those "suspected of being felonious war criminals" would face Japanese military tribunals. Offenses "subject to military punishment" included "bombing, strafing and other acts of attack aimed at threatening and inflicting casualties on civilians," "damaging and destroying private property which has no military significance" and "any atrocious brutal acts that disregard humanity." The maximum penalty was death by firing squad.

Like the Bush administration's military commissions, the Japanese courts could consider evidence extracted through coercive interrogations. But laws passed by the Japanese Diet and regulations issued by the Imperial Army spelled out procedures intended to ensure that prisoners weren't punished arbitrarily.

As the war wore on, however, the Japanese deviated from their regulations, using samurai swords to behead convicted flyers because ammunition was too scarce to waste on firing squads. Dozens of Americans were executed after summary hearings with no right of appeal.

Prosecuted by the U.S. after the war, Japanese officials said their harsh acts were dictated by military necessity.

Col. Hajime Onishi, charged with presiding over the execution of U.S. flyers in June, 1945, argued that "the indiscriminate bombings had killed 20,000 people and wounded 30,000 in his territory, most of whom were noncombatants, and, therefore, the thought of the disposition of 27 airmen was a small incident compared with these facts," records say. "The criminal code and international law were secondary matters when compared with military operations of the supreme command."

Defense lawyers argued that offering full-blown trials for American flyers was impossible in the war's waning months, as Japan suffered under relentless U.S. attacks. Besides, such procedures "would not have given the crew members any greater rights or protections than they received under the abridged procedure, and that it constituted a trial under international law." In any event, defense lawyers argued, the "crew members had no rights as they were not prisoners of war."

Perhaps surprisingly, U.S. Army reviewers concluded in 1949 that "a Japanese tribunal could have reasonably found there was indiscriminate bombing" and that "in the course of a legal trial might well have found the [American] crew members guilty." Moreover, they acknowledged that Japanese legal procedures, although based on inquisitorial judges rather than the adversarial system used in the U.S., cannot be considered "automatically illegal."

But the abridged procedures employed as the war wore down violated the flyers rights, the U.S. found. "These men were not informed they were being charged with indiscriminate bombing and, except in the intelligence investigation, where they might reasonably be expected to give as little information as possible, they were not given a chance to make a statement." The flyers weren't permitted to attend the hearings where they were convicted and sentenced, the Army reviewers found.
Then, as now, the argument was the same for the departure from legal process: necessity. In a nutshell, the argument was made then by the Japanese and now by the U.S. that a full and fair trial for the defendants might somehow damage national security, and therefore it was necessary to convene some kind of summary proceeding (usually in secret) which would safeguard the state. The similarities between the Japanese military commissions and today's U.S. military commissions are striking. Indeed, the procedure to hold such commissions without the accused in the room is at the heart of Hamdan v. Rumsfeld, the current case pending before the DC Circuit challenging the lawfulness of the commissions. (Full disclosure: I drafted a friend-of-the-court brief opposing the government in that case.) Depriving today's military commission defendants of the right to be present for all important phases of their trial, such as voir dire, runs against both U.S. statute (10 U.S.C. 839, 849, 850) and international law.

The president's order and other supporting statements make it clear that we are implementing these commission rules because we deem it necessary to do so — that it would be "impracticable" to try such individuals in federal court or a conventional military court. However, in devising these commissions, the administration has developed a set of rules which are fatally inconsistent with both U.S. law and international law. Sixty years ago, the Japanese deployed similar arguments in support of their own military commissions — and soon found themselves in the defendant's chair for war crimes based on those unlawful legal proceedings. We should be wary of following the example set by the Japanese.

If the administration wants to try enemy combatants by military commission, there is ample precedent for doing so. However, such commissions must be legislatively authorized, and constituted in accordance with U.S. law and international law. It may well be easier to simply try such defendants in a general court-martial, since the UCMJ grants military courts jurisdiction over enemy combatants for war crimes, and the military justice system is a far more mature and respected institution. Or, the current commission system can be legislatively authorized, and then amended to conform more closely to the UCMJ and past commissions procedures. The New York Times reported two weeks ago that the Pentagon was considering a proposal to do just that, but my sources agree that the proposal was dead-on-arrival when it got to the Office of the Secretary of Defense and the Vice President's office.

I suppose there is a final irony in all of this, which I alluded two in last week's Slate column on lawfare. As a nation, we have now committed ourselves to the spread of freedom and democracy throughout the world. Establishing the rule of law, and building democratic institutions, come part and parcel with this charter to spread freedom. We cannot embrace such things on the one hand, as we are in Iraq, while flouting the rule of law on the other, as we are in Gitmo. The world sees our inconsistency, and criticizes our policies as a naked, unprincipled grab for power. It's not enough to talk the freedom talk; you must also walk the freedom walk. And that means adhering to the rule of law in all contexts, such as treating captured enemy fighters according to established U.S. and international law. There is no evidence that giving these men a proper trial would somehow hurt national security; all the evidence suggests our political and moral standing would be enhanced if we treated these men according to the law. So why haven't we done so?

squinney, I'm afriad the UN will not make any headway into getting "free access" to Gitmo's prisoners.

US Soldier Sues Pentagon over Guantánamo Beating

Washington, June 20 (RHC)-- A US soldier who was seriously beaten when he posed as a foreign prisoner during a training drill at Guantánamo is suing the Pentagon for 15 million dollars. Spc. Sean Baker was medically retired from the military after he suffered a traumatic brain injury in January 2003.

The 38-year-old military policeman was assaulted after he volunteered to wear an orange jumpsuit and portray an uncooperative detainee. Baker said his fellow MPs, who were told that he was an unruly detainee who had assaulted an American sergeant, severely beat him -- leaving him with seizures, blackouts, headaches, insomnia and psychological problems.

In the lawsuit filed in US District Court in Lexington, Kentucky, Baker asked the Army to reinstate him in a position that would accommodate his medical condition. He said the Army put him on medical retirement against his wishes. Baker is also demanding 15 million dollars in damages.

The Pentagon initially said that Baker's hospitalization following the training incident was not related to the beating. Later, officials conceded that he was treated for injuries suffered when a five-man MP "internal reaction force" choked him, slammed his head several times against a concrete floor and sprayed him with pepper gas.

The drill took place in a prison isolation wing reserved for suspected Al Qaeda and Taliban detainees who were disruptive or had attacked MPs. Baker said he put on the orange jumpsuit and squeezed under a prison bunk after being told by a lieutenant that he would be portraying an unruly detainee. He said he was assured that MPs conducting the "extraction drill" knew it was a training exercise and that Baker was an American soldier.

As he was being choked and beaten, Baker reportedly screamed a code word and shouted: "I'm a US soldier! I'm a US soldier!" He said the beating continued until the jumpsuit was yanked down during the struggle, revealing his military uniform.

The lawsuit says of the extraction team: "Armed with the highly inflammatory, false, incendiary and misleading information that had been loaded into their psyches by their platoon leader, these perceptions and fears... became their operative reality, and they acted upon these fears."

Baker's attorney, T. Bruce Simpson, Jr., told reporters that no one has been disciplined or punished for the assault. Last June, a military spokesman said an internal investigation in February 2003 had concluded that no one was liable for Baker's injuries. The Pentagon spokesman said training procedures at Guantánamo had been "reviewed" after the incident.

It looks as though both the US & Australian governments don't quite know what to do about David Hicks. Is it 5 years in Guantanamo now? The US authorities don't seem to have sufficient evidence to convict him & want to handball the awkward problem of his lengthy detention back to the (usually obliging) Australian government. (Imagine the political fallout of a trial where the US authorities couldn't justify a case against him after all this time!) The Australian government certainly doesn't want the spectacle of a politically damning trial here, either. Nor does it want to explain to the Australian public why it has allowed one of it's citizens to languish in a foreign detention centre for no justifiable reason if he's not tried at all. So what's to happen to David Hicks then? How much longer can this cruel situation continue?

until he dies. then the story will be buried at the same time some trivial but sensationalist story about a collie on life suipport or something comes out.